HR Pulse

HR can prevent costly suspensions

Employees are suspended from duty for different reasons that may include the following:

• One form of suspension is a temporary lay-off of employees due to operational circumstances. This might be implemented in such a way that the employees agree to the lay-offs with some hope of more work and revenue being acquired in the future. In such circumstances the employees would not be paid but would still be the employees of the employer. 
  
  

• HR professionals must be careful not to hire new employees in place of employees who have been laid off as this would indicate that there had been no valid reason for the lay-offs. The employer could then be forced to pay the employees for the lay-off period. Where there are many workers or where the lay-off period is a long one, this payment could become astronomical.
  
  
• The employer’s intention behind the suspension may be to make the employee’s working circumstances so unbearable that he/she resigns. This motive is both illegitimate and dangerous. Employees sometimes resign during the suspension and charge the employer at CCMA with constructive dismissal. However, the employee will not easily succeed with such a charge because such an employee is obliged to go through the disciplinary process rather than resign. Should the employee claim at arbitration that the suspension was a sham on the employer’s part, HR must be ready to provide evidence showing that the employer had good reason to suspend the employee and that there was some basis for the suspicion of misconduct.
  
  
• HR may need to investigate serious allegations made against the employee. Where the employee is in a position of official or unofficial power, the suspension may be necessary in order to ensure that her/his presence at the workplace will not interfere with the investigation. This is a legitimate reason for suspension; however the employee must be paid in full during the suspension period. HR must ensure that the suspension does not have the effect of breaching a contractual right of the employee otherwise a civil suit could arise.
  
  
• HR’s investigation may uncover a need to avert the danger of the employee repeating the alleged offence. For example, if the employee is suspected of assaulting a colleague, a suspension may be merited to avert the possibility of a repeat assault. Again, the employee must be on full pay during the suspension period and the danger in question must be real.
  
  
• Punishment of the employee by the employer. Here, the employee is normally suspended without pay. However, such suspensions are often illegitimate. This is because:

1) Cutting an employee’s pay may breach the provisions of the Basic Conditions of Employment Act (BCEA).

2)The employer may have no fair reason for punishing the employee and withholding his/her pay.

Such suspensions are too often implemented while the employer is in a fit of rage.

The dangers for the employer are that the employee could challenge the fairness of the suspension itself or could take the eviction as a dismissal and then take the employer to CCMA or bargaining council.

Suspension without pay may in certain circumstances be legitimate. This might be where the employee already has a final warning for the same type of offence but the employer does not necessarily wish to dismiss the employee. The employer may then give the employee a choice of dismissal or an agreed suspension without pay for a limited period (usually not more than two weeks).

In the case of Mabitsela vs SAPS (2004, 8 BALR 969) the employee, a policeman, was suspended without pay pending a charge of murder. The police regulations do allow for such suspensions to be without pay. However, Mabitsela claimed at the bargaining council that his suspension was unfair because he had been on unpaid suspension for five months. The arbitrator found that the suspension itself was fair but that it had been unfair to implement it without pay.

This case shows how, even where regulations allow employers to suspend employees without pay, this may still be found to be unfair in the circumstances. If a suspected murderer can win such a case it would be even easier for employees who have committed lesser offences to win their cases.

The issue of when suspensions are fair and appropriate is not clear cut and thus,  HR professionals should advise employers against suspensions until they have ensured that the circumstances have been carefully and expertly assessed in the light of the complex legal principles.

To attend our 2 November seminar on HOW TO WIN AT THE CCMA please contact Ronni via This e-mail address is being protected from spambots. You need JavaScript enabled to view it. or on 0845217492.

Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. .